Keith Cooper v. Midland Credit Management, Inc. ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14144
________________________
D.C. Docket No. 4:18-cv-00132-ACA
JOHN TRICHELL,
individually and on behalf of all others similarly situated,
Plaintiff - Appellant,
versus
MIDLAND CREDIT MANAGEMENT, INC.,
a Kansas corporation,
MIDLAND FUNDING, LLC,
a Delaware limited company,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
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________________________
No. 19-10120
________________________
D.C. Docket No. 4:18-cv-00082-CDL
KEITH COOPER,
individually on behalf of himself and all others similarly situated,
Plaintiff - Appellant,
versus
MIDLAND CREDIT MANAGEMENT, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(July 6, 2020)
Before WILLIAM PRYOR, Chief Judge, MARTIN and KATSAS,* Circuit
Judges.
KATSAS, Circuit Judge:
*
Honorable Gregory G. Katsas, United States Circuit Judge for the District of Columbia
Circuit, sitting by designation.
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Plaintiffs John Trichell and Keith Cooper received debt-collection letters
that they say were misleading, but neither of them claims to have been misled. We
consider whether Trichell and Cooper have Article III standing to pursue claims
under the Fair Debt Collection Practices Act (FDCPA).
I
The FDCPA seeks to “eliminate abusive debt collection practices by debt
collectors.” 15 U.S.C. § 1692(e). Section 807 of the FDCPA provides that “[a]
debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” Id. § 1692e. Section 808
provides that “[a] debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt.” Id. § 1692f. Section 813 provides that “any
debt collector who fails to comply with any provision of [the FDCPA] with respect
to any person is liable to such person” for “any actual damage sustained by such
person as a result of such failure,” id. § 1692k(a)(1), and “such additional damages
as the court may allow,” subject to statutory caps, id. § 1692k(a)(2)(A).
These cases arise from alleged FDCPA violations by defendants Midland
Funding, LLC, which buys defaulted consumer debt, and its sister company
Midland Credit Management, Inc., which attempts to collect the debt.
In 2017, Midland Credit sent three collection letters to Alabama resident
John Trichell, who had defaulted on credit-card debt sometime before 2011. Each
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letter said that Trichell, who owed almost $43,000, had been “pre-approved for a
discount program designed to save you money.” Trichell App. 1-2 at 1, 2, 3
(formatting in original). The letters offered three repayment plans, all seemingly
generous. Trichell could pay off his debt completely for about $13,000. He could
pay off his debt in twelve monthly installments of about $1,800. Or he could
create his own repayment plan with monthly payments as low as $50. The letters
congratulated Trichell and encouraged him to “[a]ct now to maximize your savings
and put this debt behind you.” Id.
In fact, the offers were not so generous. Under Alabama law, the governing
statute of limitations provides a defense if a suit to recover on a debt was filed
more than six years after the last payment. See Ala. Code § 6-2-34(5); Ex parte
HealthSouth Corp., 974 So. 2d 288, 296 (Ala. 2007). Because Trichell had made
no payments for over six years, any claim to recover the debt would be time-
barred. At the bottom of each letter, a disclaimer acknowledged as much: “The
law limits how long you can be sued on a debt and how long a debt can appear on
your credit report. Due to the age of this debt, we will not sue you for it or report
payment or non-payment of it to a credit bureau.” Trichell App. 1-2 at 1, 2, 3.
Trichell sued Midland Funding and Midland Credit under the FDCPA. He
alleged that the collection letters were misleading and unfair in falsely suggesting
that he could be sued or that the debt could be reported to credit-rating agencies.
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Trichell sought to represent a class of similarly situated debtors and to recover
statutory damages.
The district court dismissed the complaint for failure to state a claim. The
court did not address whether Trichell had Article III standing to maintain his
lawsuit. On the merits, the court concluded that the collection letters were neither
misleading nor unfair.
The case of Keith Cooper, a Georgia resident, is similar. In 2017, Midland
Credit sent a collection letter to Cooper, who had defaulted on credit-card debt in
2010. The letter offered Cooper seemingly attractive options for paying off his
balance at steep discounts. But because the debt had been delinquent since 2010,
claims on it would be time-barred. Ga. Code § 9-3-24. The letter contained a
disclaimer, identical to those in the letters to Trichell, stating that Midland Credit
would neither sue Cooper on the debt nor report it to credit bureaus.
Cooper sued Midland Credit under the FDCPA. He alleged that the letter
was misleading because it failed to warn that making a partial payment on the debt
could constitute a new promise to pay giving rise to a new limitations period.
Cooper sought class certification and damages.
The district court dismissed the complaint for failure to state a claim. The
court did not consider whether Cooper had Article III standing. On the merits, the
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court reasoned that because the disclaimer promised no lawsuit, the collection
letter was not misleading.
In briefing the appeals, no party raised the question of Article III standing.
In both cases, however, we ordered the parties to address that issue at argument.
II
Before reaching the merits, we must consider our own jurisdiction and that
of the district court. See, e.g., Lake Country Estates, Inc. v. Tahoe Reg’l Planning
Agency, 440 U.S. 391, 398 (1979). In particular, we must ourselves decide
whether the plaintiffs in these cases have Article III standing, see United States v.
Hays, 515 U.S. 737, 742 (1995), and we must do so before reaching the merits, see
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998).
A
When the delegates to the Constitutional Convention gathered in the summer
of 1787, the extent of federal-court jurisdiction formed a focal point of their
discussions. See W. Casto, The Supreme Court in the Early Republic: The Chief
Justiceships of John Jay and Oliver Ellsworth 5–16 (1995). In a debate over what
became Article III, section 2, James Madison urged that the jurisdiction of the
Supreme Court be limited to cases of a “Judiciary Nature,” for the “right of
expounding the Constitution in cases not of this nature ought not to be given to that
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Department.” 2 Records of the Federal Convention of 1787, at 430 (M. Farrand
ed., 1911). The delegates agreed without objection. Id.Consistent with Madison’s admonition, Article III grants federal courts the
“judicial Power” to resolve only “Cases” or “Controversies.” U.S. Const. art. III
§§ 1–2. As a result, federal courts may exercise their power only for “the
determination of real, earnest, and vital controversy between individuals.” Chi. &
Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892). “No principle is more
fundamental to the judiciary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or
controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quotation marks
omitted). This case-or-controversy requirement, embodied in the doctrine of
standing, “confines the federal courts to a properly judicial role.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016).
Under settled precedent, the “irreducible constitutional minimum” of
standing consists of three elements: the plaintiff must have suffered an injury in
fact, the defendant must have caused that injury, and a favorable decision must be
likely to redress it. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The
party invoking the jurisdiction of a federal court bears the burden of establishing
these elements to the extent required at each stage of the litigation. Id. at 561.
Thus, at the motion-to-dismiss stage, Trichell and Cooper bore the burden of
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alleging facts that plausibly establish their standing. See Ashcroft v. Iqbal, 556
U.S. 662, 677–84 (2009); Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019).
The “foremost” standing requirement is injury in fact. Steel Co., 523 U.S. at
103. An injury in fact consists of “an invasion of a legally protected interest” that
is both “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical.” Defs. of Wildlife, 504 U.S. at 560 (quotation marks omitted). A
“concrete” injury must be “de facto”—that is, it must be “real, and not abstract.”
Spokeo, 136 S. Ct. at 1548 (quotation marks omitted). A “particularized” injury
“must affect the plaintiff in a personal and individual way.” Id. (quotation marks
omitted). Each subsidiary element of injury—a legally protected interest,
concreteness, particularization, and imminence—must be satisfied. See id. at
1545; Defs. of Wildlife, 504 U.S. at 560. These cases turn most centrally on the
requirement of concreteness.
As a general matter, tangible injuries qualify as concrete. See Spokeo, 136
S. Ct. at 1549. But the complaints here do not allege that the collection letters
caused Trichell or Cooper any tangible injury. For example, neither plaintiff
alleges that he made any payments in response to the defendants’ letters—or even
that he wasted time or money in determining whether to do so. Instead, when
confronted with the standing issue during oral argument, Trichell and Cooper
asserted only intangible injuries, in the form of alleged violations of the FDCPA.
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Intangible injuries sometimes qualify as concrete, but not always. In
particular, a plaintiff does not “automatically satisf[y] the injury-in-fact
requirement whenever a statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right.” Spokeo, 136 S. Ct. at 1549.
Rather, “Article III standing requires a concrete injury even in the context of a
statutory violation.” Id. To determine whether an intangible injury is sufficiently
concrete, we must look to both history and the judgment of Congress. Id.B
For history, we consider whether the alleged intangible injury bears a “close
relationship to a harm that has traditionally been regarded as providing a basis for a
lawsuit in English or American courts.” Spokeo, 136 S. Ct. at 1549. Spokeo
applied this analysis to claims under the Fair Credit Reporting Act (FCRA), which
requires consumer reporting agencies to follow procedures to ensure the accuracy
of consumer reports, and which authorizes private suits for willful violations. See
id. at 1545. The Court analogized statutory claims for the disclosure of inaccurate
reports to the traditional torts of libel and slander per se, which permit recovery
even if the plaintiff’s harms are “difficult to prove or measure.” Id. at 1549. So,
for example, a FCRA claim arising from the disclosure of an inaccurate zip code
would not be actionable, for it is “difficult to imagine” how such a disclosure
“could work any concrete harm” that would have been actionable at common law.
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Id. at 1550. On the other hand, the Ninth Circuit concluded that a FCRA claim
arising from the disclosure of false information about the plaintiff’s age,
employment, education, and wealth does involve a concrete injury, and therefore is
actionable, because it is similar to claims actionable at common law. Robins v.
Spokeo, Inc., 867 F.3d 1108, 1113–17 (9th Cir. 2017). And, of course, a FCRA
claim involving not only disclosure of false and sensitive information, but also
consequential harms such as a reduced credit score, is also actionable. Pedro v.
Equifax, Inc., 868 F.3d 1275, 1279–80 (11th Cir. 2017).
In Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017), this
Court applied a historical analysis to assess Article III standing to raise claims
under the Video Privacy Protection Act. That statute prohibits video tape service
providers from disclosing customer records, and it provides a cause of action to
anyone aggrieved by a violation. See id. at 1340. The Court analogized this
statutory cause of action to the traditional tort of intrusion upon seclusion, which
makes a defendant liable for invading the plaintiff’s privacy without any further
harm. Id. at 1340–41. Given the similarity of the statutory claim to the traditional
tort, the Court held that a wrongful disclosure of the plaintiff’s browsing records
“satisfied the concreteness requirement of Article III standing.” Id. at 1341.
By contrast, the common law furnishes no analog to the FDCPA claims
asserted here. The closest historical comparison is to causes of action for
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fraudulent or negligent misrepresentation, but these torts differ from the plaintiffs’
claims in fundamental ways. For centuries, misrepresentation torts have required a
showing of justifiable reliance and actual damages. See Pasley v. Freeman (1789)
100 Eng. Rep. 450, 453 (Buller, J.) (“Fraud without damage, or damage without
fraud, gives no cause of action; but where these two concur, an action lies.”);
Prosser & Keeton on the Law of Torts §§ 105, 108 (5th ed. 1984). Today as well,
a claim for fraudulent misrepresentation still requires the plaintiff to prove harm
“caused to him by his justifiable reliance upon the misrepresentation.”
Restatement (Second) of Torts, § 525 (1977); see also Restatement (First) of Torts,
§ 525 (1938). Likewise, negligent misrepresentation claims still require plaintiffs
to show harm “caused to them by their justifiable reliance upon” the false
information. Restatement (Second) of Torts, § 552; see also Restatement (First) of
Torts, § 552. In short, under our common-law tradition, “there can be no recovery
if the plaintiff is none the worse off for the misrepresentation, however flagrant it
may have been.” Prosser & Keeton, supra, § 110.
The claims asserted here depart dramatically from these centuries of
tradition. The plaintiffs seek to recover for representations that they contend were
misleading or unfair, but without proving even that they relied on the
representations, much less that the reliance caused them any damages. By
jettisoning the bedrock elements of reliance and damages, the plaintiffs assert
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claims with no relationship to harms traditionally remediable in American or
English courts. This cuts against Article III standing, for the purpose of that
doctrine is to confine courts to their “traditional role.” Summers v. Earth Island
Inst., 555 U.S. 488, 492 (2009); see also Spokeo, 136 S. Ct. at 1547; Raines, 521
U.S. at 819.1
C
In assessing injury in fact, we also consider the judgment of Congress. It
can matter for two reasons. First, Congress may “elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in
law.” Defs. of Wildlife, 504 U.S. at 578. So, for example, Congress may make
“legally cognizable” the interests of a competitor harmed by conduct that violates a
statute. See, e.g., Hardin v. Ky. Utils. Co., 390 U.S. 1, 5–6 (1968); FCC v. Sanders
Bros. Radio Station, 309 U.S. 470, 476–77 (1940). Second, Congress is “well
positioned” to make its own judgment about which harms are sufficiently concrete,
particularized, and imminent to constitute injuries in fact. Spokeo, 136 S. Ct. at
1549. For example, the Telephone Consumer Protection Act (TCPA) prohibits
certain unsolicited communications and provides a cause of action to individuals
1
The dissent contends that the claims here also bear a close relationship to the common-
law tort of abuse of process. Post, at 37–39. But that tort requires “harm” caused by the
improper use of “legal process.” Restatement (Second) of Torts § 682; see also Restatement
(First) of Torts § 682. Trichell and Cooper do not allege that the defendants used legal process
against them or that they suffered any harm.
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receiving them. Although the statute has been understood to apply to both
telephone calls and text messages, the TCPA’s statutory findings highlight the
burden imposed by unwanted calls but say nothing about unwanted texts. See
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat.
2394, 2394. In part, this Court relied on those findings in holding that the receipt
of unwanted phone calls is a concrete injury, Cordoba v. DIRECTV, LLC, 942 F.3d
1259, 1270 (11th Cir. 2019), but the receipt of a single unwanted text message is
not, Salcedo, 936 F.3d at 1169–70.
Congress’s role in our assessment of Article III standing is necessarily
limited. As the master of its own statutes, Congress may freely make injuries
legally cognizable for statutory purposes. See Defs. of Wildlife, 504 U.S. at 578.
But the requirements of concreteness, particularization, and imminence are
“irreducible” elements of Article III itself. See id. at 560–61. In enacting statutory
causes of action, Congress must assess for itself whether these constitutional
requirements have been met. See U.S. Const. art. VI, cl. 3 (“The Senators and
Representatives ... shall be bound by Oath or Affirmation, to support this
Constitution.”). And in adjudicating cases or controversies (or determining
whether they exist), federal courts must decide for themselves whether applicable
statutes are consistent with the Constitution. See City of Boerne v. Flores, 521
U.S. 507, 524 (1997); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).
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That is why, as the Supreme Court has insisted time and again, “Congress’ role in
identifying and elevating intangible harms does not mean that a plaintiff
automatically satisfies the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that person to sue to vindicate
that right.” Spokeo, 136 S. Ct. at 1549; see Earth Island Inst., 555 U.S. at 497;
Raines, 521 U.S. at 820 n.3. On the contrary, the existence of a “cause of action
does not affect the Article III standing analysis.” Thole v. U.S. Bank N.A., 140 S.
Ct. 1615, 1620 (2020). “Article III standing requires a concrete injury even in the
context of a statutory violation,” Spokeo, 136 S. Ct. at 1549, and Article III
courts—while exercising jurisdiction to determine their own jurisdiction—must
ultimately decide what injuries qualify as concrete. Congress’s judgment may
inform that assessment but cannot control it.2
Here, the judgment of Congress disfavors Trichell and Cooper. The
FDCPA’s statutory findings contain one sentence identifying the harms against
which the statute is directed: “Abusive debt collection practices contribute to [a]
number of personal bankruptcies, to marital instability, to the loss of jobs, and to
2
The dissent repeatedly stresses the point that “when a statutory right itself protects a
concrete interest, a plaintiff need not allege ‘any additional harm beyond the one Congress has
identified.’” Post, at 29 (quoting Spokeo, 136 S. Ct. at 1549); see also id. at 39, 44. We have no
quarrel with that general proposition. But as we have shown, we cannot treat an injury as
“concrete” for Article III purposes based only on Congress’s say-so. Like the Sixth Circuit, we
reject the “anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury.” Hagy
v. Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018).
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invasions of individual privacy.” 15 U.S.C. § 1692(a). These serious harms are a
far cry from whatever injury one may suffer from receiving in the mail a
misleading communication that fails to mislead. In terms of “privacy and nuisance
concerns,” Salcedo, 936 F.3d at 1169, an unwanted mailing is more like an
unwanted text message than an unwanted phone call. See Consol. Edison Co. of
N.Y. v. Pub. Serv. Comm’n, 447 U.S. 530, 542 (1980) (recipient “may escape
exposure to objectionable material simply by transferring the [communication]
from envelope to wastebasket”). And while a recipient may take offense that a
private party has violated the FDCPA, that is akin to taking offense that the
government has violated other statutes—an injury that is canonically abstract as
opposed to concrete. See, e.g., Defs. of Wildlife, 504 U.S. at 575–76; Allen v.
Wright, 468 U.S. 737, 754 (1984).
The FDCPA’s private cause of action reinforces this analysis. It provides
that a person may recover “any actual damage sustained by such person as a result
of” an FDCPA violation and “such additional damages as the court may allow.”
15 U.S.C. § 1692k(a). This formulation suggests that Congress viewed statutory
damages not as an independent font of standing for plaintiffs without traditional
injuries, but as an “additional” remedy for plaintiffs suffering “actual damage”
caused by a statutory violation. For example, the Real Estate Settlement
Procedures Act (RESPA) provides a cause of action for “actual damages” resulting
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from statutory violations and, in pattern-or-practice cases, for “any additional
damages, as the court may allow.” 12 U.S.C. § 2605(f)(1). In construing RESPA,
this Court held that “damages are an essential element” of a claim, Renfroe v.
Nationstar Mortg., LLC, 822 F.3d 1241, 1245–46 (11th Cir. 2016), and further
stated that “the use of ‘additional’ seems to indicate that a plaintiff cannot recover
pattern-or-practice damages in the absence of actual damages,” id. at 1247 n.4.
In sum, the FDCPA’s narrow findings and cause of action affirmatively cut
against Cooper and Trichell and, in any event, suggest no congressional judgment
firm enough to break with centuries of tradition indicating that misrepresentations
are not actionable absent reliance and ensuing damages.3
D
Against this history and congressional judgment, Trichell and Cooper assert
standing based on risk and informational injuries. Neither theory works.
1
Trichell and Cooper assert that the collections letters they received created a
risk that unsophisticated consumers might be misled into making unnecessary or
even harmful payments on time-barred debt. And that risk, they conclude, is
enough to establish a concrete injury. This theory suffers from two fatal defects:
3
We do not decide the scope of the FDCPA’s statutory cause of action. Under Steel Co.,
we must decide questions of Article III standing, which here are dispositive, before reaching
questions about the scope of a statutory cause of action. See 523 U.S. at 88–93.
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First, Trichell and Cooper do not allege that the collection letters posed any risk of
harm to themselves. Second, any risk that the letters may have posed to them had
dissipated by the time they filed suit.
Risk to Plaintiffs: An injury in fact must be particularized as well as
concrete. See Spokeo, 136 S. Ct. at 1548. To be particularized, the injury “must
affect the plaintiff in a personal and individual way.” Defs. of Wildlife, 504 U.S. at560 n.1 (emphasis added). In other words, “the ‘injury in fact’ test requires more
than an injury to a cognizable interest. It requires that the party seeking review be
himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972).
The same principle holds true when the plaintiff invokes a statutory cause of
action: “where a statute confers new legal rights on a person, that person will have
Article III standing to sue where the facts establish a concrete, particularized, and
personal injury to that person as a result of the violation of the newly created legal
rights.” Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781
F.3d 1245, 1251 (11th Cir. 2015) (emphasis added). Because “standing is not
dispensed in gross,” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996), what matters is
whether the plaintiff has suffered a concrete injury, not whether other parties have.
The plaintiffs’ risk-as-injury theory founders because their complaints do not
allege that the collection letters “substantially increased the risk” of harm to
Trichell or Cooper. Thole, 140 S. Ct. at 1621. Trichell asserts only that the letters
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“would lead a consumer to believe that they [sic] had to pay this debt to avoid
being sued, credit reported, or having to pay the full amount at some point in the
future.” Trichell App. 1 at 6 (emphasis added). Cooper comes closer, but he too
falls short. He alleges that the collection letter sent to him “puts an unsophisticated
consumer, i.e. Plaintiff, into a difficult position. The consumer is enticed by the
prospect of saving a great deal of money on a debt but not advised that by making
a payment, he will be re-starting the statute of limitations that could subject him to
a future lawsuit for which he previously had an absolute defense.” Cooper App. 1
at 8. Cooper’s allegation that he was put into a “difficult position” does not
support a plausible inference that he was at substantial risk of making any
payment. Nor does Cooper’s allegation that the collection letter “expos[ed] him to
a potential lawsuit that he would not have previously been exposed to.” Id. at 8–9.
Moreover, Cooper’s complaint reflects a perfect understanding of why the
collection letters were arguably misleading, without any suggestion that Cooper
figured this out only after flirting with the idea of making a payment. With no
plausible allegation that they were ever at substantial risk of being misled, Trichell
and Cooper cannot show standing based on such a risk to others. 4
4
The dissent posits that the increase in risk must be measured in relative terms, not
absolute amount. Post, at 43 n.2. But an action creating a small risk of injury cannot support
Article III standing on the theory that the risk, although not “substantial in itself,” is
“substantially increased” from zero. Id. (cleaned up). To the contrary, no small risk of injury
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Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329 (7th Cir. 2019),
reinforces our conclusion. That case involved an FDCPA requirement to tell
recipients of debt-collection letters how to preserve their rights to contest the debt.
Id. at 332. The debt collector failed to provide the notice, the plaintiff sued, and
the Seventh Circuit affirmed a dismissal for lack of Article III standing. The court
reasoned that, because the plaintiff had never planned to contest the debt, she was
never at risk of forfeiting her rights. See id. at 334. And because the debt
collector’s “bare procedural violation” did not increase the risk of any harm to the
plaintiff’s concrete interests, it could not support Article III standing. Id. at 334–
35; see also Earth Island Inst., 555 U.S. at 496 (“deprivation of a procedural right
without some concrete interest that is affected by the deprivation—a procedural
right in vacuo—is insufficient to create Article III standing”). Moreover, the likely
reaction of “unsophisticated consumer[s]” may inform a merits determination
whether a communication is misleading, but it cannot allow “those who have not
been injured to vindicate the rights of those who have.” Casillas, 926 F.3d at 336
would satisfy the Article III requirement of imminence. See, e.g., Clapper v. Amnesty Int’l USA,
568 U.S. 398, 409–14 (2013). And that imminence requirement—of at least a “‘substantial risk’
that the harm will occur,” id. at 414 n.5—is precisely what Thole cited for the proposition that
the challenged act must have “substantially increased the risk” of harm to the plaintiff. 140 S.
Ct. at 1621. The Court was plainly speaking in terms of the absolute increase rather than the
percentage increase—which would be infinite in every case where the plaintiff was at no risk
before the defendant acted.
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n.3. The same logic controls this case—Trichell and Cooper cannot prove standing
merely by alleging risks posed to consumers other than themselves.
Our analysis draws further support from Frank v. Autovest, LLC, No. 19-
7119, 2020 WL 3053199 (D.C. Cir. June 9, 2020). There the plaintiff claimed that
the defendants had violated the FDCPA by filing false affidavits in a collection
action. The plaintiff invoked the same FDCPA provisions at issue here: Section
807’s prohibition on misleading statements and Section 808’s prohibition on unfair
collection methods. Id. at *2. The D.C. Circuit held that the plaintiff lacked
standing because the false affidavits did not mislead or otherwise injure the
plaintiff. Id. As for the judgment of Congress, the court stressed that “[n]othing in
the FDCPA suggests that every violation of the provisions implicated here” creates
an Article III injury. Id. at *3. Moreover, it made no difference that the affidavits
might have misled a hypothetical unsophisticated debtor. Tracking Casillas, the
court explained that “[a]fter Spokeo, a plaintiff must demonstrate a subjective—
that is, an actual—personal injury for standing even when his merits argument
turns on the perspective of an objective, unsophisticated consumer.” Id. at *4.
Like the plaintiff in Frank, Trichell and Cooper have failed to allege such a
personal injury.
We recognize that other circuits disagree. In Macy v. GC Services Limited
Partnership, 897 F.3d 747 (6th Cir. 2018), which involved the same FDCPA
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provisions at issue in Casillas, the Sixth Circuit found standing based on the
increased forfeiture risk to consumers in general, without any showing that the
failure to provide notice placed the plaintiffs at greater risk. See id. at 758–59.
Likewise, in Cohen v. Rosicki, Rosicki & Associates, P.C., 897 F.3d 75 (2d Cir.
2018), which involved the FDCPA’s prohibition on misleading communications,
the Second Circuit found standing based only on a risk of harm, even though the
plaintiff never alleged that the communication at issue might have affected him
personally. See id. at 80–82.
In our view, the approach of the Seventh and D.C. Circuits is more faithful
to Article III. As we have explained, a statutory violation that poses a risk of
concrete harm to consumers in general, but not to the individual plaintiff, cannot
fairly be described as causing a particularized injury to the plaintiff. Here, neither
Trichell nor Cooper has alleged such a particularized injury.
Dissipated Risk: In any event, any risk to Trichell and Cooper had entirely
dissipated by the time they filed their respective complaints. As noted above, the
complaints explain perfectly well why the collection letters were arguably
misleading. The complaints thus did not, and could not, make any allegation that
Trichell or Cooper was at risk of being misled in the future. Moreover, any past
risk had dissipated before they filed the complaints, and courts must assess Article
III standing as of when a complaint is filed. See Focus on the Family v. Pinellas
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Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003). In other cases
finding standing on the ground that the defendant’s statutory violation had
increased the plaintiff’s risk of injury, the risk still existed when the complaint was
filed. See, e.g., Spokeo, 867 F.3d at 1115–17 (ongoing risk of harm from
disclosure of false credit information).
By contrast, this Court has rejected claims of Article III standing where the
plaintiff’s risk of harm had dissipated before the complaint was filed. In Nicklaw
v. CitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016), a bank failed to timely record
a discharge of the plaintiff’s mortgage, and New York law provided a statutory
cause of action for the failure. But the bank recorded the discharge before the
plaintiff filed his lawsuit, and no harm had befallen the plaintiff in the interim. On
these facts, with an allegation “only that [the bank] recorded the [discharge] late
and nothing else,” the Court held that the plaintiff “failed to establish that he
suffered or could suffer any harm that could constitute a concrete injury.” Id. at
1003. Later, two members of the Nicklaw panel elaborated that no Supreme Court
decision “holds—or even hints—that a plaintiff has standing to sue because he
faced a risk of harm that never materialized and has since disappeared.” Nicklaw
v. CitiMortgage, Inc., 855 F.3d 1265, 1267 (11th Cir. 2017) (W. Pryor, J.,
respecting the denial of rehearing en banc).
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So too here: Even if Trichell and Cooper were placed at risk of being
defrauded when they received their collection letters, the risk never materialized,
had dissipated before the complaints were filed, and cannot possibly threaten any
future concrete injury. For this additional reason, Trichell and Cooper cannot
show Article III standing based on a risk of injury.
Trichell counters that this analysis is inconsistent with Holzman v. Malcolm
S. Gerald & Associates, Inc., 920 F.3d 1264 (11th Cir. 2019), which permitted an
FDCPA claim to go forward on facts similar to those alleged here. But Holzman
did not address any question of Article III standing. And “[w]hen a potential
jurisdictional defect is neither noted nor discussed in a federal decision, the
decision does not stand for the proposition that no defect existed.” Ariz. Christian
Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011). Holzman thus provides no
support for the plaintiffs.
2
Trichell and Cooper also seek to base standing on a claimed informational
injury. They contend that the FDCPA gives them a right to receive truthful
communications from debt collectors, which makes any violation of that right
qualify as a concrete injury. We disagree.
The plaintiffs’ theory invokes two Supreme Court cases addressing when a
denial of information constitutes an injury in fact. In Public Citizen v. DOJ, 491
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U.S. 440 (1989), the Court held that the government’s refusal to disclose
information about prospective judicial nominees, as assertedly required by the
Federal Advisory Committee Act, constituted a concrete Article III injury. See id.at 448–50. Likewise, in FEC v. Akins, 524 U.S. 11 (1998), the Court held that the
government’s refusal to compel disclosure of information about a political group,
as assertedly required by the Federal Election Campaign Act, also constituted a
concrete Article III injury. See id. at 21–25. For two reasons, these cases provide
no support to Trichell and Cooper.
First, the statutes at issue in Public Citizen and Akins made certain
information subject to public disclosure. But the FDCPA is not a public disclosure
law at all. The provisions at issue here create no substantive entitlement to receive
information from debt collectors. Instead, they provide only that debt-collection
letters may not be misleading or unfair. See 15 U.S.C. §§ 1692e, 1692f. And the
gravamen of the plaintiffs’ complaints is not that they sought and were denied
desired information, but that they received unwanted communications that were
misleading and unfair. The informational-injury cases thus are inapposite.
Casillas makes a similar point. That case involved FDCPA provisions
requiring debt collectors to disclose specific information about what the recipient
of a letter must do to preserve statutory rights to contest the debt. See 926 F.3d at
334–35. Yet the Seventh Circuit described the provisions as “procedural” ones
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designed to protect against forfeitures, rather than “sunshine” provisions making
information available to all who wish to have it. See id. at 337–39. And given that
characterization, the court held that the critical fact for standing purposes was not
that the debt collector had failed to give the notice required by the FDCPA, but that
the failure created no risk of a forfeiture by the plaintiff. See id. at 338. If that line
of reasoning governs FDCPA provisions requiring the disclosure of specific
information about how to preserve rights, then it surely also governs FDCPA
provisions that merely prohibit misleading or unfair communications.
Second, the plaintiffs in Public Citizen and Akins identified consequential
harms from the failure to disclose the contested information. The advocacy
organizations in Public Citizen alleged that they needed the information to
“participate more effectively in the judicial selection process.” 491 U.S. at 449.
And the voters in Akins alleged that the information “would help them (and others
to whom they would communicate it) to evaluate candidates for public office.”
524 U.S. at 21. Trichell and Cooper have identified no comparable downstream
consequences from their receipt of allegedly misleading communications that
failed to mislead. Absent any such concrete impact, they can complain only about
receiving information that had no impact on them. As several other courts have
recognized, an asserted informational injury that causes no adverse effects cannot
satisfy Article III. See Frank, 2020 WL 3053199, at *3; Casillas, 926 F.3d at 338;
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Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 467 (6th Cir. 2019); Dreher v.
Experian Info. Sols., Inc., 856 F.3d 337, 346–47 (4th Cir. 2017).
Finally, we note that Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982),
is also inapposite. That case arose under the Fair Housing Act of 1968, which
makes it unlawful to falsely state to any applicant for housing, because of the
applicant’s race, that available housing is unavailable, and which provides for
private civil enforcement. See id. at 367 n.2, 372 n.11. Construing these
provisions, the Court held that a black tester, employed by a housing organization
to detect unlawful discrimination, had standing to sue for false representations
made to her even though she did not intend to rent an apartment. Id. at 373–74.
Trichell and Cooper claim to have suffered a similar injury when they received the
allegedly misleading collection letters.
Havens Realty does not sweep that broadly. For one thing, it is unclear
whether the Court rendered a holding about the concreteness of the tester’s injury,
as opposed to whether Congress had made the injury legally cognizable under the
Fair Housing Act. See 455 U.S. at 373–75. To be sure, Havens Realty did not
itself distinguish those questions, but Defenders of Wildlife and Spokeo make clear
that we must. In any event, the Fair Housing Act does not seek to vindicate some
amorphous interest in receiving unusable housing information. Instead, it protects
the weighty interest in not being subjected to racial discrimination, which can
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inflict a concrete injury on anyone who “personally” experiences it. See Wright,
468 U.S. at 755 (quotation marks omitted). Trichell and Cooper allege nothing
comparable here, so their harm in receiving information that might mislead others
cannot support Article III standing.
III
Neither Trichell nor Cooper suffered an injury in fact when they received
allegedly misleading communications that did not mislead them. Because they
lack Article III standing, we vacate the district courts’ judgments and remand the
cases with instructions to dismiss for lack of Article III standing.
VACATED and REMANDED.
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MARTIN, Circuit Judge, concurring in part and dissenting in part:
Keith Cooper and John Trichell received letters from Midland Credit
Management, Inc. (“Midland”) seeking to collect on time-barred debt. Mr. Cooper
and Mr. Trichell view these letters as deceptive because they gave the false
impression that debts previously owed by the men were still legally enforceable.
Mr. Cooper goes a step further, saying that if he had responded to the letter by
making a payment on the time-barred debt, he would have unwittingly restarted the
statute of limitations. In other words, his payment would have converted a debt he
was not legally obligated to pay into one he was. Plaintiffs claim these letters
violate the Fair Debt Collection Practices Act (“FDCPA”), which prohibits “false,
deceptive, or misleading representation[s]” and “unfair or unconscionable means”
to collect debt. 15 U.S.C. §§ 1692e, 1692f.
I believe both plaintiffs have satisfied Article III’s concreteness requirement
by alleging that Midland sent them deceptive letters in violation of §§ 1692e and
1692f. Because in addition, Mr. Cooper alleged particularized injury, I believe he
satisfied Article III’s injury-in-fact requirement. As for Mr. Trichell, I agree with
the majority that he lacks standing to bring his claim because he failed to allege
any particularized harm.
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I.
I begin with basic principles of our Article III jurisprudence. The majority is
right to say that, in order to satisfy the injury-in-fact requirement for Article III
standing, a plaintiff must allege an injury that is both “concrete” and
“particularized.” Spokeo v. Robins, 578 U.S. ___, 136 S. Ct. 1540, 1548
(2016), as revised (May 24, 2016). The majority is also correct that the Supreme
Court in Spokeo recognized an injury need not be “tangible” to satisfy the
concreteness requirement. Id. at 1549. Rather, even intangible injuries, such as
the “risk of real harm,” may be concrete. Id. In this regard, the Supreme Court
tells us that “both history and the judgment of Congress” inform our analysis of
whether an intangible injury is sufficiently concrete. Id. And while the majority
opinion recognizes this, it makes no mention of the fact that when a statutory right
itself protects a concrete interest, a plaintiff need not allege “any additional harm
beyond the one Congress has identified.” Id.; see also Perry v. Cable News
Network, Inc., 854 F.3d 1336, 1340–41 (11th Cir. 2017) (holding that a plaintiff
alleging a violation of the Video Privacy Protection Act need not allege “any
additional harm beyond the statutory violation” because both congressional
judgment and common law support a finding of concreteness).
Contrary to the majority opinion, I read §§ 1692e and 1692f to protect a
concrete interest, and both history and the judgment of Congress support this idea.
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Plaintiffs’ claims are analogous to the common law torts of abuse of process and
fraudulent misrepresentation, and the violations they allege are at the very core of
the interests Congress sought to protect when enacting the FDCPA. Left to decide
this case on my own, I would hold that these plaintiffs satisfied Article III’s
concreteness requirement without having to allege “any additional harm beyond”
the one Congress identified in enacting §§ 1692e and 1692f.
A.
Although Congress’s decision to grant a right to sue “is not determinative of
Article III standing,” its judgment is “instructive and important because Congress
is well positioned to identify intangible harms that meet minimum Article III
requirements.” Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1268 (11th Cir. 2019)
(quotation marks omitted); see also Daniel Townsend, Who Should Define Injuries
for Article III Standing?, 68 Stan. L. Rev. Online 76, 81–83 (2015) (explaining that
Congress is better positioned to gather facts and make empirical judgments about
whether a practice is injurious). Here, Congress expressed its judgment to protect
people’s concrete interest in being free from false, deceptive, or unfair debt
collection notices, when it enacted §§ 1692e and 1692f.
Congress passed the FDCPA after concluding that “debt collection abuse by
third party debt collectors is a widespread and serious national problem.” S. Rep.
No. 95-382, at 2 (1977). The official Senate report on the FDCPA found,
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While unscrupulous debt collectors comprise only a small segment of
the industry, the suffering and anguish which they regularly inflict is
substantial. Unlike creditors, who generally are restrained by the desire
to protect their good will when collecting past due accounts,
independent collectors are likely to have no future contact with the
consumer and often are unconcerned with the consumer's opinion of
them.
Id. The report went on to find that “[c]ollection abuse [by debt collectors] takes
many forms, including . . . [the] misrepresentation of a consumer’s legal right” as
well as “simulating legal process.” Id. Similarly, a House report concluded that at
the time of the FDCPA’s passage, “there ha[d] been an increasing incidence of
debt collectors abusing consumers by using various means of harassment and
deception,” including by sending “phony legal documents.” H. Rep. No. 95-131,
at 2 (1977). Based on the “abundant evidence” of abusive and deceptive debt
collection practices, Congress concluded that those practices contribute to
“personal bankruptcies, to marital instability, to the loss of jobs, and to invasions
of individual privacy.” 15 U.S.C. § 1692(a).
To address these abuses, the FDCPA prohibits debt collectors from using
any “false, deceptive, or misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. One of the prohibited deceptive
practices is misrepresentation of “the character, amount, or legal status of any
debt.” Id. § 1692e(2)(A). Likewise, a debt collector may not use any “unfair or
unconscionable means to collect or attempt to collect any debt.” Id. § 1692f. The
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complaints allege that Mr. Cooper and Mr. Trichell each received letters
suggesting they had to pay off certain debts to avoid being sued or reported to a
credit agency. According to plaintiffs, these letters gave the impression that the
debts they referenced were legally enforceable, when in fact they were barred by
the statute of limitations. In Mr. Cooper’s case, payment on his debt may have
restarted the limitations period. Midland’s letters thus presented “a risk of harm to
the FDCPA’s goal of ensuring that consumers are free from deceptive debt-
collection practices.” Macy v. GC Servs. Ltd. P’ship, 897 F.3d 747, 757 (6th Cir.
2018).
In reaching its conclusion that “the judgment of Congress disfavors Trichell
and Cooper,” Maj. Op. at 14, I fear the majority opinion trivializes the harm
resulting from misleading debt collection letters. The majority holds that the
receipt of a deceptive debt collection letter is “like an unwanted text message,”
which this Court said is insufficient to confer standing in Salcedo v. Hanna, 936
F.3d 1162, 1168 (11th Cir. 2019). It is not similar, according to the majority, to an
unwanted phone call, which this court said is enough to establish standing in
Cordoba, 942 F.3d at 1268. Neither comparison withstands scrutiny. The Salcedo
plaintiff received a single text message from his former attorney offering a ten
percent discount on legal services. 936 F.3d at 1165. The Cordoba plaintiff got
advertising phone calls from DIRECTV. 942 F.3d at 1266. Marketing texts or
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phone calls causing a temporary nuisance to the recipient are a far cry from one of
Midland’s letters, which plaintiffs say falsely represented that they were on the
hook for tens of thousands of dollars of debt.
The majority also minimizes plaintiffs’ injuries by analogizing them to a
person “taking offense that the government has violated other statutes.” Maj. Op.
at 15. That the majority relies on Lujan v. Defenders of Wildlife, 504 U.S. 555,
112 S. Ct. 2130 (1992), for this proposition demonstrates the weakness of the
comparison. In Lujan, environmental organizations challenged a regulation
requiring federal agencies to consult with the Secretary of the Interior about threats
to endangered species caused by agency action. Id. at 558–59, 112 S. Ct. at 2135.
The appeals court held that the injury-in-fact requirement was satisfied because
Congress had “confer[red] upon all persons . . . an abstract, self-contained,
noninstrumental ‘right’ to have the Executive observe the procedures required by
law.” Id. at 573, 112 S. Ct. at 2143. The Supreme Court reversed, reiterating that
standing does not exist to assert a “generally available grievance about
government” that “no more directly and tangibly” affects the plaintiffs “than it
does the public at large.” Id. at 573–74, 112 S. Ct. at 2143. But in its discussion,
the Court recognized the difference between “generalized grievance” cases, like
Lujan, and others in which “plaintiffs are seeking to enforce a procedural
requirement the disregard of which could impair a separate concrete interest of
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theirs.” Id. at 572, 112 S. Ct. at 2142. The claims of Mr. Cooper and Mr. Trichell
fall squarely into the latter category. They did not allege merely that Midland ran
afoul of the FDCPA in some abstract or generally applicable sense. Rather, they
say that Midland violated the FDCPA by sending them collection notices implying
that their time-barred debts were still legally enforceable. In so doing, Midland
impaired their concrete interest in being free from false, deceptive, or unfair debt
collection communications.
Finally, the majority opinion speculates that the FDCPA’s private right of
action provision may not permit statutory damages in the absence of actual
damages, and says this idea “reinforces” its view that Congress did not believe
violations of § 1692e constitute concrete injury. Maj. Op. at 15. But this approach
conflates our merits inquiry with our Article III standing analysis. Even if it were
true that the FDCPA requires proof of “actual damages” as a prerequisite to
damages, 1 this would at most reflect a judgment about whether such plaintiffs
should prevail on their claims. It says nothing about whether Congress judged
them to have suffered an injury in fact. See Whitmore v. Arkansas, 495 U.S. 149,
155, 110 S. Ct. 1717 (1990) (“Our threshold inquiry into standing in no way
depends on the merits of the [plaintiff’s] contention that particular conduct is
1
As the majority correctly recognizes, this Court has not decided (and does not decide
here) whether statutory damages are available under the FDCPA in the absence of actual
damages. Maj. Op. at 16 n.3.
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illegal . . . .” (quotation marks omitted)); Rocky Mountain Helium, LLC v. United
States, 841 F.3d 1320, 1325 (Fed. Cir. 2016) (“[A] merits determination is not a
permissible one for the standing analysis, which assumes the merits of a litigant’s
claim . . . .”); Brown v. Medtronic, Inc., 628 F.3d 451, 457 (8th Cir. 2010)
(observing that it is “important not to conflate” Article III’s injury requirements
with the “plaintiff’s ultimate burden of proof as to the issues of damages and
causation”).
I believe the judgment of Congress supports plaintiffs’ claim that they have
each suffered concrete injury.
B.
Also instructive on whether a statutory violation constitutes a concrete injury
is an examination of whether it “has a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit in English or
American courts.” Spokeo, 136 S. Ct. at 1549. The majority recognizes that a
statutory violation will often be sufficiently concrete when it is closely related to a
claim that has historically been recognized at common law. Maj. Op. at 9–12.
This Court’s decision in Perry serves as an example. The panel found Mr. Perry
had standing to assert a claim based solely on the violation of a provision of the
Video Privacy Protection Act (“VPPA”) that prohibited the wrongful disclosure of
video tape rental or sale records, without any allegations of further harm. 854 F.3d
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at 1340. Our Court reasoned that a violation of the statute, without more, was
sufficient for Article III standing because this provision of the VPPA bore a “close
relationship” to the tort of intrusion upon seclusion. Id. at 1340–41. And in Pedro
v. Equifax, Inc., 868 F.3d 1275 (11th Cir. 2017), this Court found Mr. Pedro had
standing based on a bare violation of a provision in the Fair Credit Reporting Act
(“FCRA”) that requires consumer reporting agencies to follow reasonable
procedures “to assure maximum possible accuracy” of reported information. Id. at
1278, 1280 (quoting 15 U.S.C § 1681e(b)). Our Court reached this conclusion
because the FCRA provision at issue had a “close relationship to the harm caused
by the publication of defamatory information, which has long provided the basis
for a lawsuit in English and American courts.” Id. at 1280.
I see a close relationship between Mr. Trichell and Mr. Cooper’s FDCPA
claims and common law harms like the ones this Court recognized in Perry and
Pedro. As I discussed above, Congress enacted the FDCPA to provide redress
against debt collectors who mistreat consumers by misrepresenting the character or
legal status of debts, “simulating legal process,” sending “phony legal documents,”
and harassing consumers at home and at work. S. Rep. No. 95-382, at 2; H. Rep.
No. 95-131, at 2. And Congress recognized “abusive debt collection practices
contribute to harms that can flow from mental distress, like ‘marital instability’ and
‘the loss of jobs.’” Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 691–92 (8th
36
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Cir. 2017) (quoting 15 U.S.C. § 1692(a)). These abuses, and the harms that flow
from them, sound in the common law torts of abuse of process and fraudulent or
negligent misrepresentation.
Abuse of process protects against the “the unscrupulous use of the courts by
individuals as instruments with which to maliciously injure their fellow men.”
Bertero v. Nat’l Gen. Corp., 529 P.2d 608, 614 (Cal. 1974) (alteration adopted)
(quotation marks omitted). For over 300 years, common law courts have
recognized that “contriving to injure someone by pretense and color of legal
process demand[s] redress because it resulted in a loss of reputation, anxiety and
the expenditure of funds in defense.” Bd. of Ed. of Farmingdale Union Free Sch.
Dist. v. Farmingdale Classroom Teachers Ass’n, Inc., Local 1889, 343 N.E.2d 278,
281 (N.Y. 1975) (citing Savile v. Roberts (1698) 91 Eng. Rep. 1147). Beyond that,
“[t]he employment of process to extort property was, of itself, a sufficient cause of
action,” a principle which has carried into modern jurisprudence. Id. at 282. And
while abuse of process has typically required the initiation of formal legal
proceedings, the “effecting [of] a not too subtle threat . . . should be actionable” as
well. Id. at 283; cf. Ruberton v. Gabage, 654 A.2d 1002, 1005 (N.J. Super. Ct.
App. Div. 1995) (defining “abuse of process” as “the abuse of procedural methods
used by a court to acquire or exercise its jurisdiction over a person or over specific
property.” (quotation marks omitted)).
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The common law also protects against harms resulting from intentionally
false communications and misleading nondisclosures. See Dan B. Dobbs et al.,
The Law of Torts § 662 (2d ed. June 2020 update); Restatement (Second) of Torts
§ 525 (1977); Cunningham v. Credit Bureau of Lancaster Cty., Inc., No. 17-cv-
5102, 2018 WL 6062351, at *6 (E.D. Pa. Nov. 20, 2018) (observing that “the
common law has long reflected an interest in avoiding the harms inherent to
receiving misleading information”) And some common law courts have allowed
plaintiffs “to recover for [emotional] distress arising where the defendant
negligently transmits or fails to transmit important information.” Dobbs, supra, §
395.
There is a close relationship between these common law claims and the
harms from which Congress sought to guard consumers when it passed the
FDCPA. Both Congress, by enacting the FDCPA, and the common law provided
causes of action for the emotional harm caused by abusing legal process and
deceiving consumers. The majority fails to account for the similarity between
§§ 1692e and 1692f, and abuse of process torts. The majority also goes beyond
requiring a showing that the harm has a close relationship with one recognized at
common law. It also says that plaintiffs must show that the alleged conduct
satisfies “the bedrock elements of reliance and damages.” Maj. Op. at 11–12. But
this is mistaken, because, in order to satisfy Spokeo, congressionally proscribed
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“conduct [need not] give rise to a cause of action under common law.” Susinno v.
Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (emphasis added); see also
Golan v. FreeEats.com, Inc., 930 F.3d 950, 958 (8th Cir. 2019) (“An alleged harm
need not actually have been actionable at common law to satisfy this inquiry,
rather it must have a “close relationship” to the type of harm that has traditionally
been recognized as actionable.”). If a plaintiff were required to satisfy every
element of a common law cause of action before qualifying for statutory relief,
Congress’s power to “elevat[e] intangible harms” by defining injuries and chains
of causation which will “give rise to a case or controversy where none existed
before” would be illusory. Spokeo, 136 S. Ct. at 1549 (quotation marks omitted);
see also id. (recognizing that Congress may “elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in
law” (alteration in original) (quotation marks omitted)). These plaintiffs have
alleged intangible harms that are closely related to harms traditionally protected at
common law, so they need only allege a violation of that statute to satisfy Article
III’s concreteness requirement.
C.
The idea that where a statute itself protects a concrete interest, a plaintiff
need not allege any harm beyond that which was identified by Congress, was as
true before Spokeo as it is after. See Spokeo 136 S. Ct. at 1549 (citing Fed.
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Election Comm’n v. Akins, 524 U.S. 11, 20–25, 118 S. Ct. 1777, 1784–87 (1998),
and Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 449, 109 S. Ct. 2558, 2564
(1989)). Both history and the judgment of Congress suggest that Midland’s
violations of the FDCPA constitute an injury to these plaintiffs’ concrete interest in
being free from false, deceptive, or unfair debt collection notices. Thus, plaintiffs’
allegations that Midland violated §§ 1692e and 1692f by sending them false and
misleading letters satisfies Article III’s concreteness requirement.
Other Circuit Courts agree. The majority recognizes that both the Second
and Sixth Circuits are at odds with its holding. In Cohen v. Rosicki, Rosicki &
Associates, P.C., 897 F.3d 75 (2d Cir. 2018), the Second Circuit considered
whether the plaintiff had standing to assert an FDCPA violation for the defendant’s
failure to identify the proper creditor on a foreclosure complaint. Id. at 79–80.
That court rejected the defendant’s argument that the plaintiff lacked standing
because he “has alleged only a bare statutory procedural violation, divorced from
any concrete harm.” Id. at 81 (alteration adopted) (quotation marks omitted). It
concluded that congressional judgment supported a finding of concreteness
because Congress passed the FDCPA to “protect against the abusive debt
collection practices likely to disrupt a debtor’s life.” Id. (quotation marks omitted).
Because the defendant’s failure to identify the proper creditor in its complaint
“could [have] hinder[ed] the exercise of [plaintiff’s] right to defend or otherwise
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litigate that action,” the plaintiff’s bare allegation of a statutory violation was
sufficient to satisfy Article III’s concreteness requirement. Id. at 81–82.
In Macy, the plaintiffs claimed the defendant debt collector failed to provide
notice, as required under the FDCPA, that the plaintiffs could dispute their debts
only in writing. 897 F.3d at 758. The plaintiffs alleged that the failure to provide
this notice could lead a consumer to waive or otherwise not properly vindicate her
rights under the FDCPA. Id. The Sixth Circuit said these plaintiffs satisfied the
concreteness requirement because the defendant’s FDCPA violations “created a
material risk of harm to a congressionally recognized interest.” Id. at 759. That
interest—what the Sixth Circuit termed the “core object of the FDCPA”—was the
elimination of abusive debt collection practices. Id. The court concluded that a
violation of the in-writing requirement harms that interest because it increases the
risk that the debtor will waive her right to verify and challenge her debts. Id.
Along the same lines, Mr. Cooper and Mr. Trichell allege they were subject to
deceptive, misleading, and unfair collection communications, the elimination of
which was another core object of the FDCPA. See H. Rep. No. 95-131, at 2. They
have thus alleged a concrete injury.
II.
Of course, Mr. Cooper and Mr. Trichell cannot establish standing by solely
alleging a concrete harm. Rather, Article III requires an injury that is both
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“concrete and particularized.” Spokeo, 136 S. Ct. at 1548 (quotation marks
omitted). The particularity requirement says that an injury “must affect the
plaintiff in a personal and individual way.” Id. (quotation marks omitted). I share
the majority’s view that Mr. Trichell’s complaint fails the particularity requirement
because it states only that the “least sophisticated consumer” would have been
misled by Midland’s debt collection letter. Mr. Trichell does not say he was
affected in any way by the letter. See Frank v. Autovest, LLC, ___ F.3d ___, 2020
WL 3053199, at *4 (D.C. Cir. June 9, 2020) (holding that a plaintiff cannot
establish standing merely by alleging that the “least sophisticated consumer”
would have been misled by a debt collection communication). I therefore join the
majority’s conclusion that Mr. Trichell failed to allege particularized harm, and
that his complaint must be dismissed for lack of standing.
However, I reject the majority’s conclusion as to Mr. Cooper. He met his
burden to allege a particularized injury at the pleading stage. Mr. Cooper’s
complaint alleges that Midland’s letter put him “into a difficult position” because it
“entice[d]” him to make a payment by offering significant savings on his debts.
He says that if he had acted on Midland’s letter and made a payment on his debt,
he would have “expos[ed] him[self] to a potential lawsuit that he would not have
previously been exposed to.” According to the complaint, Midland’s letter thus
employed “deceptive means” “[w]ith respect to [Mr. Cooper].” I view Mr.
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Cooper’s complaint to sufficiently allege that Midland’s letter put him at real risk
of making a payment on his time-barred debt.2 He has therefore made the
necessary showing, at the motion to dismiss stage, that he was affected by the
conduct at issue in a “in a personal and individual way.” Spokeo, 136 S. Ct. at
1549 (quotation marks omitted); see also Lujan, 504 U.S. at 561, 112 S. Ct. at 2137(“[O]n a motion to dismiss we presume that general allegations embrace those
2
The majority says Mr. Cooper failed to allege an injury in fact because his complaint
does not plausibly allege that he was at “substantial risk” of making payment on his debt. Maj.
Op. at 18. However, in the context of statutory causes of action, the Supreme Court has not held
that a plaintiff must allege risk that was “substantial” in itself. Rather, in Spokeo the Court held
that a plaintiff must allege a “real” or “material” risk of harm, 136 S. Ct. at 1550, and in Thole v.
U.S. Bank N.A., 590 U.S. ___, 140 S. Ct. 1615 (2020), it suggested that a “substantially
increased” risk of harm would be sufficient, id. at 1621 (emphasis added). Mr. Cooper’s
complaint satisfies both articulations. He was subject to a real or material risk of harm when
Midland’s letter put him in a “difficult position” by “entic[ing]” him to restart the limitations
period on time-barred debt. And he was subject to substantially increased risk of harm because
before receiving Midland’s letter, Cooper says he was not at all at risk of making payment on his
debt.
Although the Court in Thole suggested that plaintiffs must allege a “substantially
increased” risk of harm to satisfy Article III standing, the majority posits that, by citing to
Clapper v. Amnesty International USA, 568 U.S. 398, 133 S. Ct. 1138 (2013), the Court really
meant to say plaintiffs must allege a “substantial risk” of harm. Maj. Op. at 18 n.4. In Clapper,
the Court held that plaintiffs challenging the constitutionality of a surveillance program lacked
standing because they did not show a “certainly impending” risk or a “substantial risk” that their
communications would be intercepted. Id. at 414 & n.5, 133 S. Ct. at 1150 & n.5. In my view,
the Thole Court’s failure to expressly adopt Clapper’s “substantial risk” language was no
accident. Unlike Thole, which addressed a claim arising under ERISA, 140 S. Ct. at 1618,
Clapper did not involve a statutory cause of action. And as the Third Circuit has recognized, the
Supreme Court requires a lesser magnitude of risk for statutory injuries in order to “strike[] a
balance between Congress’s power to define injuries . . . and the requirement that—absent a
statutory right of action—a threatened harm be certainly impending or based on a substantial risk
of harm to amount to injury in fact.” Kamal v. J. Crew Grp., Inc., 918 F.3d 102, 113 (3d Cir.
2019) (citation and quotation marks omitted).
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specific facts that are necessary to support the claim.” (alteration adopted)
(quotation marks omitted).
The majority looks to the Seventh Circuit’s decision in Casillas v. Madison
Avenue Associates, Inc., 926 F.3d 329 (7th Cir. 2019), and the D.C. Circuit’s
decision in Frank to support its holding that Mr. Cooper did not allege a
particularized harm. Neither case lends support to the majority’s holding. In
Casillas, the court assessed whether the plaintiff had alleged a concrete injury, as
opposed to whether that injury was particularized. Id. at 333 (“The question here
is whether Casillas has alleged that she suffered—or faced a real risk of
suffering—a concrete harm.”); see also Spokeo, 136 S. Ct. at 1548(“Concreteness . . . is quite different from particularization.”). And to the extent
Casillas held that plaintiffs cannot satisfy the injury-in-fact requirement by alleging
an FDCPA violation alone, Casillas suffers from the same fundamental flaw as the
majority opinion. It fails to recognize that where a statute itself protects a concrete
interest, a plaintiff need not allege any more than the harm identified by Congress.
The panel in Casillas never considered this avenue for establishing injury in fact,
as evidenced by its failure to consult the common law or the judgment of Congress
before concluding that the plaintiff failed to allege an injury in fact. See id.; cf.
Macy, 897 F.3d at 759 (finding standing after concluding that Congress established
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the FDCPA provision at issue to protect a concrete interest); Cohen, 897 F.3d at
80–81 (same).
The majority’s reliance on Frank is similarly unavailing. The Frank court
assessed an FDCPA plaintiff’s standing at the summary judgment stage,
concluding that the plaintiff failed to meet her burden because there was no
testimony that “she was . . . confused, misled, or harmed in any relevant way
during the collection action.” ___ F.3d ___, 2020 WL 3053199, at *2. Here, in
contrast, the court is assessing standing at the pleading stage, which requires only
“general factual allegations” of personal injury. Lujan, 504 U.S. at 561, 112 S. Ct.
at 2137. Mr. Cooper satisfied this burden by asserting he was confused and misled
by a collection letter offering savings on time-barred debt, the payment of which
might have restarted the applicable limitations period.
III.
The majority also concludes that Plaintiffs could not have suffered an injury
in fact because any risk to them “had entirely dissipated by the time they filed their
respective complaints.” Maj. Op. at 21–22. I reject this conclusion as well. As set
out above, the concrete injury identified by Congress was the risk of being misled
by deceptive collection letters into paying time-barred debt. Mr. Cooper’s
complaint adequately alleges that he personally experienced exactly this concrete
harm, thus satisfying Article III’s injury-in-fact requirement. See Macy, 897 F.3d
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at 759 (holding that an alleged FDCPA violation creating a “material risk of harm
to a congressionally recognized interest” satisfies the concreteness prong of the
injury-in-fact requirement); Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir.
2016) (“[A]n alleged procedural violation can by itself manifest concrete injury
where Congress conferred the procedural right to protect a plaintiff’s concrete
interests and where the procedural violation presents a ‘risk of real harm’ to that
concrete interest.” (quoting Spokeo, 136 S. Ct. at 1549)). I see no basis for
requiring a plaintiff previously at risk of being misled to allege a continuation of
that risk.
Nicklaw v. CitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016), is not to the
contrary. Our court held that Mr. Nicklaw lacked standing because he failed to
allege that he was ever subject to either “a harm [or] a material risk of harm that
the district court could remedy.” Id. at 1003. The Nicklaw panel also properly
recognized that plaintiffs may satisfy Article III standing by alleging statutory
violations which expose a plaintiff to a material risk of harm. Id. at 1002–03. And
while it is true that standing is determined at the moment a plaintiff’s complaint is
filed, there is no requirement that a plaintiff seeking redress for past injury show
ongoing harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S. Ct.
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1660, 1669 (1983) (noting that allegations of past harm were sufficient to establish
standing for damages claim). 3
The D.C. Circuit addressed a similar circumstance in Jeffries v. Volume
Services of America, Inc., 928 F.3d 1059 (D.C. Cir. 2019). The question in
Jeffries was whether the plaintiff suffered an injury in fact when a vendor printed
the expiration date and all sixteen digits of her credit card number on her receipt, in
violation of the Fair and Accurate Credit Transactions Act (“FACTA”). Id. at
1062. The plaintiff argued that she suffered a concrete injury because the receipt
exposed her to an “increased risk of identity theft.” Id. at 1063–64. In response,
the vendor argued that the plaintiff could not satisfy the injury-in-fact requirement
because the plaintiff “through her own efforts, . . . has mitigated any risk of a third
party accessing her credit card information.” Id. at 1066. The court rejected this
argument, observing that FACTA was designed not to criminalize identity theft,
but to ensure that consumers do not experience “an increased risk” of identity theft.
Id. Although that risk did not materialize, the panel recognized that the plaintiff
nevertheless experienced harm, analogizing her to “someone who replaces the pin
in a grenade [and] remains, nonetheless, previously at risk of getting blown up.”
3
While the majority cites Focus on the Family v. Pinellas Suncoast Transit Authority,
344 F.3d 1263 (11th Cir. 2003), for the proposition that an injury or a risk of injury must be
present at the time that a complaint is filed, Maj. Op. at 21, that case discusses only equitable
standing, not standing in a suit for damages. Focus on the Family, 344 F.3d at 1275.
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Id. at 1067 (emphasis omitted). Similarly, even though Mr. Cooper was not tricked
into making payments on his time-barred debt, Midland’s letters nevertheless put
him at risk of doing so.
Here, Mr. Cooper seeks retrospective relief for his past exposure to precisely
the sort of risk Congress sought to curb when it enacted the FDCPA. I say that is
enough. To require him to have actually been deceived presses far beyond
Spokeo’s requirements and significantly undermines Congress’s ability to identify
and prevent risks to the public.
IV.
Congress passed the FDCPA to protect consumers’ concrete interest in being
free from deceptive and abusive debt collection notices. Both the conduct
Congress sought to prevent and the harms resulting from that conduct have close
analogues in common law causes of action. Mr. Cooper has plausibly alleged that
he suffered precisely the harm Congress sought to prevent in passing this statute. I
understand Spokeo to require us to recognize Mr. Cooper’s injury in fact under
these circumstances.
48